The United Kingdom: A constitution similar in principle to Canada?

Nearly 150 years after Canada adopted “a Constitution similar in principle to that of the United Kingdom,” legislators in the UK are contemplating doing the reverse. Recent months have witnessed heightened debate over whether the UK should replace its centuries-old “unwritten constitution” with a written document that more closely resembles Canada’s. Our Kingdom, a project of the global website OpenDemocracy, has been at the forefront of the debate. Below, Our Kingdom member Guy Aitchison describes the debate, its origins, and its potential implications.

In his first speech to the House of Commons as Prime Minister, Gordon Brown called for a radical and far-reaching conversation on the democratic future of the United Kingdom. The speech was unprecedented for a serving prime minister since it suggested a possible route map towards a written constitution. It would, said Brown, be a “fundamental and historic shift” to move away from our “largely unwritten constitution” and introduce a “full British Bill of Rights and Duties.” The ambitious government paper which accompanied the speech was therefore described as a “first step” towards a sustained national debate, involving not just the political parties, but people from “all the nations and regions of this country.”

It is unclear as yet how the government will conduct the proposed debate. But what is clear is that reform is long overdue. Britain’s over-centralized state is antiquated and out-of-date. The much vaunted “flexibility” offered by Britain’s unwritten constitution, has, in recent years, permitted an ever greater concentration of power in the hands of the executive, and the gradual erosion of civil liberties, now accelerated in the name of a “war on terror.” These undemocratic developments, alongside a manifestly unfair electoral system, have contributed to historic levels of public disengagement, with turnout at the last two general elections hovering at around 60%.

A recent example serves to illustrate the hazards inherent in relying on an unwritten constitution. In the last days of the Blair government, the Home Secretary arbitrarily announced the creation of a new “Ministry of Justice” with responsibility for the courts, prisons, probation, criminal law, sentencing and constitutional affairs. The judiciary voiced strong concerns that its independence was threatened since this handed responsibility for judicial administration to a department clearly lodged within the executive camp. Hitherto, responsibility for upholding judicial independence had belonged to the ancient office of the Lord Chancellor, who sat as a peer in the House of Lords and acted as a bridge between the executive and the judiciary. Although the new Minister of Justice is under statutory obligation to uphold the integrity and independence of the judiciary, is this really possible when the same minister has added responsibility for prisons and probation? Since the changes, the judiciary has been demanding a ring-fenced budget for the courts, something the government is unwilling to provide. One would have thought that such a bold reform would be governed by established rules and principles, or that it would at least require extensive consultation and parliamentary debate. Instead, it was announced in late-March, and implemented just six weeks later. The case for a written constitution which clearly defines the relationships between parliament, the executive and the judiciary seems clear.

What chance is there of Britain getting a democratic written constitution fit for the 21^st century? Although it is far from certain whether this is what Brown intends, the indications are that he recognizes the need for a coherent “new constitutional settlement” to restore trust in a political system that suffers from disengagement, and to build a clear sense of British national identity and purpose.

Unlike Blair, Brown is seen as an intellectually serious politician whose engagement with the constitutional agenda is long-standing. In 1992, Brown delivered an important lecture for Charter 88, a group established during the Thatcher years to campaign for a written constitution. In his lecture, Brown called for a “decisive shift in the balance of power in Britain…from an ancient and indefensible Crown sovereignty to a modern and popular sovereignty.” There are additional signs that others high-up in the Labour party have also begun to favour a written constitution. In an early scoop, Our Kingdom broke the news that MP Jack Straw had been converted to the idea. (As Minister of Justice under Brown, Straw has now been put in charge of overseeing constitutional reform.) Further, in what seems like clear evidence of a shift away from traditional Labour thinking, four out of six candidates for the deputy leadership of the party recently declared themselves in favour of a written constitution. Support for a written constitution seems to be high among the public, as well. When asked in a recent poll whether “Britain needs a written constitution providing clear legal rules within which government ministers and civil servants are forced to operate,” 68% per cent agreed.

Not surprisingly, Brown’s opponents have questioned his motives. Some have dismissed his proposals as a cynical attempt to give Brown a facade of democratic legitimacy as an unelected Scot ruling over the English. Others have condemned the proposals as a doomed attempt to hold together the crumbling imperial British state as it is torn apart by the nationalist forces unleashed since devolution. But there are signs that the opposition parties may be willing to support a transformative democratic agenda. Although the Tories have not taken a firm stand on the written constitution issue, under the leadership of David Cameron, they have been enthusiastic supporters of direct democracy and the ‘localist’ idea of devolving as much power as possible from the centre. And the Liberal Democrats, who, as the “third party,” traditionally show the most enthusiasm for constitutional reform, recently proposed that the government establish a convention to work on a written constitution, with 50 per cent of the convention’s members randomly selected by lot from the public.

If a constitutional convention is established, it is likely that Westminster, the “mother of all parliaments,” would draw on the experience of her more democratic offspring. Canadian models for engaging citizens on constitutional issues are frequently mentioned. Here at Our Kingdom, we are keeping a close eye on recent Citizens’ Assembly initiatives in Ontario and British Columbia.

And that’s where we’re at right now: exploring ways of arriving at a written constitution which may – or may not – be in the cards. Will the constitution be merely descriptive of the out-dated system that we already have, or transformative in bringing British democracy into the 21^st century? Well, that’s another question. However, one thing seems certain: it’s an exciting time for democrats in the UK and there’s still everything to play for.